Who would benefit from this? Almost no one. The conflict in Darfur is too complex and the attempts to resolve it are too delicate for so one-sided and blunt an approach. The two previous cases where incumbent presidents were indicted by international courts (though not the ICC) were very different from Sudan. The Yugoslav president, Slobodan Milosevic, was under military attack from Nato. Negotiations had been cut off. Ultimately, they were renewed but only with the good offices of the Russians who had shown no enthusiasm for the Hague tribunal’s indictment. Charles Taylor, the Liberian president, was indicted by a special hybrid court for his activities across the border in Sierra Leone and at a time when the two countries were virtually at war.

…The situation on the ground is dire. Hijackings of aid vehicles and food, mainly done by rebel groups, are increasing, with the number of incidents for the first six months of 2008 already equal to the total for the whole of last year. The aid agencies have to work with the consent of the government. Short of a hostile invasion designed to topple the regime in Khartoum – a decision that would be foolish and sure to make the situation even worse – there is no other choice for them but to deal with Bashir and his people. As for the chance of finding a political solution to the Darfur crisis, the AU and UN are conducting fitful talks with Darfur’s rebels in the hope of getting them to resume negotiations with the government. How could the mediators expect to persuade the rebels to be reasonable if the other side’s president has been charged with war crimes?

Nor is Darfur the only seat of tension in Sudan. The peace deal between north and south, which ended a conflict that went on longer than Darfur’s, is still fragile. What would happen to the coalition government that currently runs Sudan in preparation for a referendum on the south’s potential secession?

My sympathies are with Steele. There’s a temptation to say enough is enough, screw the bastard, and arrest away. But the indictments are a blunt instrument wielded by a narrowly focused and unelected body, the ICC, fighting for its existence and relevance (and trying to make up for a number of bungles). I support the idea of the ICC, but I’m worried that this risky decision was made without consideration for the big picture, including peace in the region.

The ICC’s Ocampo has a reputation as a loose cannon and a publicity hound, and is said to have an eye on the Argentine presidency. This reputation accords with my impressions of the ICC’s work in northern Uganda–a rash, risky, poorly informed and planned move that nearly backfired.

Is Ocampo acting rashly and alone again? I hope not. I hope that something as serious as an indictment of a sitting President would be part of a high level (probably secretive) discussion among world leaders and the UN. I hope this most of all when we are speaking of a nation with extensive UN operations, several peace efforts, several brewing wars, and an African Union peacekeeping mission (and thousands of foreign humanitarian workers) in country.

I’ve blogged before what I know of Ocampo and the ICC’s previous bungles. Based on that, I fear the worst.

The best way through this dilemma may be for the UN Security Council to take advantage of the likely two to three month window before the judges’ decision on the arrest warrant, to assess whether genuine and substantial progress is in fact being made in stopping the continuing violence for which the governing regime bears responsibility, engaging in genuine peace negotiations in Darfur, expediting UNAMID deployment and advancing the CPA. If it believes such progress is being made, and that the interests of peace justify this course being taken, the Security Council could – even if the Prosecutor and the ICC wanted to proceed – exercise its power under Article 16 of the Rome Statute to suspend any prosecutions, for an initial twelve months but with such suspension able to be renewed indefinitely.

This strikes me as the most reasonable path forward for the moment. I’m thankful there’s a channel to rein in Ocampo if need be.

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Chris,Beg to disagree 100% with the thrust of your argument, which basically boils down to: whenever a secretive group feels justice is not in their interest, they can and should ignore basic rule of law. The ICC is set up as a very basic instrument of rule of law, to further the interests of all humans in justice. To be so cavalier about that institution, well, you may as well throw in the towel and start spending your CGD salary on fancy cars, women and wine (wait, don’t you already do that?!).

The usual argument made by anti-indictment types is that there is an incredibly fine tightrope that only experts (the anti-indictment person) knows how to walk, and that the ICC prosecutor is trampling all over the tightrope. The acrobats will tumble! This kind of rhetoric willfully ignores that the ICC has always been part of that tightrope, that the prosecutor is one small strand in that tightrope, and that the tightrope is more like a spiderweb. So it’s just another war criminal indictment.

But the indictments are a blunt instrument wielded by a narrowly focused and unelected body, the ICC, fighting for its existence and relevance (and trying to make up for a number of bungles).

Well quite; but in this situation, it’s hard to see any less blunt instruments readily to hand. Almost any institution involved in this will be unelected, and I would say that the narrow focus of the ICC in this case is actually an advantage.

I support the idea of the ICC, but I’m worried that this risky decision was made without consideration for the big picture, including peace in the region.

This sounds dangerously harrumphing to me. The regional situation is so complex that any decision is risky – and it’s not as if the current approach has yielded great benefits for the people of Darfur. All of the potential problems outlined by Steele in his piece are just that – potential problems.

Nobody except the Sudanese government disputes that the indictment has grounds, but outside observers seem to be divided into those who want more time for the situation to play out – without ever identifying exactly how much time they want, or how precisely they expect the situation to play out – and those who believe that there is no peace without justice, no statute of limitations on crimes against humanity and no pragmatism involved in spinning diplomatic wheels.

I also must disagree with you on this. You say that no one will benefit from this move but the Prosecutor has issued these indictments with the idea that justice must be done, that war criminals must be punished. I would argue when that happens, everyone benefits on some level. You might argue that that is fine and good, but people are dying. But as you say, the Security Council is paralysed by Russia and China, the situation is clearly not improving, and the Prosecutor is at least doing his job. There will always be arguments about the incompatibility of reconcilliation/reconsctruction and justice–the international community, through the ICC, and through the Security Council have chosen justice decisively, and have chosen to do very little otherwise. They’ve chosen justice and that is what they’re getting with this indictment.

I worry about your cynicism about the ICC. A lot of mistakes will be made at first (made all the more unfortunate because of the nature of its jurisdiction) but the ICC is only in its institutional infancy.

I think though that you may be right about suspending the investigation if it prevents the escalation of violence in Sudan, although I don’t see it as a way to rein in Moreno-Ocampo, but more as a carrot instead of a stick.

I dont worry about your cynicism. I think its very healthy. However, the ICG recommendation of ‘wait and see’ and ‘if we get what we want then lets get the SC to suspend for 12 months’ isnt tres cool. The ICC then is a blunt instrument of political force, not an independant body.

Having said that, I share your concern for the implications. Im sure the prosecutor is also considering the potential impacts, but it is up to others (like academics, public intellectuals, politicians) to point out the political dangers. the prosecutor must have made a judgement call at some point on the potential impact but cant say it, he must maintain the nuetrality.

Having said THAT, I did read an interesting critique that the prosecutor, only human, fancies himself more than just a prosecutor but a white knight of sorts – and is playing politics, assuming he might be able to end wars and genocides. all this suggests either a)its a lot of gossip, or b) its factual and then, personality still counts for something in this world. eg. his view is subjective and is leading him down a path a more objective one would not. hard to know as I am not his pyschologist and, he Cant say anything beyond ‘we are just doing our job’. saying you are a nuetral body and being one are different things…aid organizations used to say that, remember then?

Finally,no one seems to be making the connection between a Bashir indictment and a Kony indictment, the two now have more in common than ever before. How will this affect their relationship now they have both been banished to exile island?

I’m an Associate Professor of Political Science & International and Public Affairs at Columbia University. I use field work and statistics to study poverty, political engagement, the causes and consequences of violence, and policy in developing countries. [Read more]